Nullification Nullifies Freedom

The advocates of “states’ rights” have long pushed the idea of nullification–the doctrine that a state can declare a federal law null and void within that state. (Sadly, even Thomas Jefferson endorsed the idea.) More recently, many conservatives and Libertarians have been pushing the idea of jury nullification.

The doctrine of nullification is put forth as a means to reign in an out-of-control government, and that goal is certainly understandable. Its advocates claim that nullification will protect individual liberty. However, nullification, whether by a state or a jury, simply substitutes one form of tyranny for another.

In both instances, nullification is a rejection of the rule of law and a call for unlimited majority rule.

As an example, Texas Governor Rick Perry, an advocate of “states’ rights,” has said, “I believe the Constitution does not empower the federal [government] to override state laws without restraint.” Ann Coulter recently wrote, “The Constitution mostly places limits on what the federal government can do. Only in a few instances does it restrict what states can do.” In other words, according to the “states’ rights” advocates, the states should be free to do whatever they damn well please, including negating federal laws.

According to Perry and Coulter, if a state wishes to prohibit cowboy boots or blond hair, then it should be free to do so without interference from the federal government. And if Congress passed legislation protecting an individual’s right to wear Tony Lamas or bleach her hair, each state should also have a right to nullify that law. After all, the Constitution says nothing about a right to wear the foot covering of your choice or sport a particular hair color. According to the advocates of nullification, if the Constitution does not speak to a particular issue, then it is fair game for the states.

If this weren’t bad enough, the advocates of jury nullification argue that even state and local laws can be ignored by a jury. Wikipedia describes jury nullification as:

a constitutional doctrine which allows juries to acquit defendants who are technically guilty, but who don’t deserve punishment. It occurs in a trial when a jury reaches a verdict contrary to the judge’s instructions as to the law. [bold added]

In other words, it really doesn’t matter what the law is. A jury can reach a verdict (or punishment) based on its sense of justice.

The Wikipedia description speaks to acquittal, but if a jury can ignore the law, then a jury can ignore the law. It can also convict an individual who is “technically innocent.” If a jury can ignore the law, “technical” guilt or innocence is irrelevant. An individual’s conviction, acquittal, or punishment is entirely in the hands of the jury’s sense of justice. Neither the law nor the facts will matter. If the jury dislikes the defendant because he is black, or gay, or “too rich,” or advocates the “wrong” ideas, or anything else, the jury can decide accordingly.

The advocates of nullification argue that some groups–the majority in a state or a jury–can ignore the law.

I can certainly understand the desire to nullify many laws. If I had my way, I’d nullify 90 percent (or more) of them. I would declare them null and void in my life, and proceed to live according to my own judgment. But if I wish to live in a civilized society, I cannot simply ignore laws with which I disagree. If I have such a “right,” then so does everyone else, and that is anarchy. If my group can ignore the law, then so does every other group, and that is anarchy.

Anarchy is what nullification leads to. If the law can be ignored because some group “nullifies” it, then there is no end to the number of groups that could declare laws null and void, and then act accordingly.

The solution to bad laws is not nullification. The solution is better ideas. Bad ideas lead to bad laws. If we desire a nation in which individual liberty is protected, then we must fight for the ideas upon which freedom is founded. We must defend the moral right of each individual to his own life, his own liberty, and the pursuit of his own happiness. And we must reject the idea that the state, the community, or the majority has a moral claim on the lives of individuals.

Brian Phillips has been actively defending individual rights for the past twenty-five years. He has successfully helped defeat attempts to implement zoning in Houston, Texas, and Hobbs, New Mexico. His writing has appeared in The Freeman, Reason, The Orange County Register, The Houston Chronicle, The Objective Standard, Capitalism Magazine, and dozens of other publications. He is the author of Individual Rights and Government Wrongs